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TCL > August 2001 Issue > Court Business

August 2001       Vol. 30, No. 8       Page  129
From the Courts

Court Business

Court Business

U.S. District Court for the District of Colorado

NOTICE

 

IN THE MATTER OF )

LOCAL RULES OF PRACTICE )

PURSUANT to 28 U.S.C. § 2071, Federal Rule of Civil Procedure 83 and Federal Rule of Criminal Procedure 57. It is

ORDERED that the proposed Local Rules of Practice for the District of Colorado shall be posted in the Clerk’s Office and on the Court’s website, www.cod.uscourts.gov. Copies of the proposed rules shall be available for distribution at the Clerk’s Office or upon request to the Clerk’s Office. Notice of these proposed changes will be published in The Colorado Lawyer. [A copy of the proposed Local Rules of Practice is available at the Colorado Bar Association office, 1900 Grant St., Ste. 900, Denver; call Karen Bries, (303) 824-5303 or (800) 332-6736.] Public comments shall be filed with the Clerk, Room C-145, U.S. Courthouse, Denver, CO 80294, no later than September 28, 2001. An en banc public hearing of the Court’s voting active judges will be held November 30, 2001, at 9:00 a.m. in Courtroom C-201. No one will be heard at the public hearing who has not filed comments with the Clerk as set forth in this Order.

Dated at Denver, Colorado, June 20, 2001.

By the Court:

Lewis T. Babcock, Chief Judge


 

Supreme Court Rules Committee

Change #2001(9)
Corrective Order
Colorado Rules of Civil Procedure
Chapter 4. Disclosure and Discovery

Rule 30. Depositions Upon Oral Examination

(a) [No Change]

(b) [No Change]

(c)[No Change]

(d) Schedule and Duration; Motion to Terminate or Limit Examination. (1) [No Change]

(2) By order, the court may limit the time permitted for the conduct of a deposition, but may allow additional time if needed for a fair examination of the deponent and consistent with C.R.C.P. 26(b)(1), or if the deponent or another party impedes or delays the examination. If the court finds such an impediment, delay, or other conduct that frustrates the fair examination of the deponent, it may impose upon the person responsible therefor an appropriate sanction, including the reasonable costs and attorney fees incurred by any parties as a result thereof.

(3) [No Change]

(e) [No Change]

(f) [No Change]

(g) [No Change]

This Corrective Order is issued June 4, 2001, effective immediately.

By the Court:

Gregory J. Hobbs, Jr.

Justice, Colorado Supreme Court

 


C.R.C.P. 26. General Provisions Governing Discovery; Duty of Disclosure

 

(a) Required Disclosures; Methods to Discover Additional Matter.

Unless otherwise ordered by the court or stipulated by the parties, provisions of this Rule shall not apply to domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, C.R.C.P. 120, or other expedited proceedings.

(1) Disclosures. Except to the extent otherwise directed by the court, a party shall, without awaiting a discovery request, provide to other parties:

(A) [No Change]

(B) A listing, together with a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings, making available for inspection and copying the documents or other evidentiary material, not privileged or protected from disclosure, as though a request for production of those documents had been served pursuant to C.R.C.P. 34;

(C) A description of the categories of damages sought and a computation of any category of economic damages claimed by the disclosing party, making available for inspection and copying pursuant to C.R.C.P 34 the documents or other evidentiary material, not privileged or protected from disclosure, as though a request for production of those documents had been served pursuant to C.R.C.P. 34; and

(D) Any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment, making such agreement available for inspection and copying pursuant to C.R.C.P. 34.

The timing of disclosures shall be within 30 days after the case is at issue as defined in C.R.C.P. 16(b). A party shall make the required disclosures based on the information then known and reasonably available to the party and is not excused from making such disclosures because the party has not completed investigation of the case or because the party challenges the sufficiency of another party’s disclosures or because another party has not made the required disclosures.

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by subsection (a)(1) of this Rule, a party shall disclose to other parties the identity of any person who may present evidence at trial, pursuant to Rules 702, 703, or 705 of the Colorado Rules of Evidence together with an identification of the person’s fields of expertise.

(B)(I)-(II) [No Change]

(C) Unless otherwise provided in the Case Management Order, the timing of the disclosures shall be as follows:

(I) The disclosure by a claiming party under a complaint, counterclaim, cross-claim or third-party claim shall be made at least 120 days before the trial date.

(II) The disclosure by a defending party shall be made within 30 days after service of the claiming party’s disclosure, provided, however, that if the claiming party serves its disclosure earlier than required under subparagraph 26(a)(2)(C)(I), the defending party is not required to serve its disclosures until 90 days before the trial date.

(III) If the evidence is intended to contradict or rebut evidence on the same subject matter identified by another party under subparagraph (a)(2)(C)(II) of this Rule, such disclosure shall be made within 20 days after the disclosure made by the other party.

(3) [No Change]

(4) Form of Disclosures; Filing. All disclosures pursuant to subparagraphs (a)(1) and (a)(2) of this Rule shall be made in writing, signed pursuant to C.R.C.P. 26(g)(1), served and promptly filed with the court, but such court filings shall not include copies of any disclosed documents or other evidentiary material, or any expert reports or summaries.

(5) [No Change]

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) [No Change]

(2) Limitations. Except upon order for good cause shown, discovery shall be limited as follows:

(A) A party may take one deposition of each adverse party and of two other persons, exclusive of persons expected to give expert testimony disclosed pursuant to subsection 26(a)(2). The scope and manner of proceeding by way of deposition and the use thereof shall otherwise be governed by C.R.C.P. Rules 26, 28, 29, 30, 31, 32 and 45.

(B)-(D) [No Change]

(E) A party may serve on each adverse party 20 requests for admission, each of which shall consist of a single request. A party may also serve requests for admission of the genuineness of up to 50 separate documents that the party intends to offer into evidence at trial. The scope and manner of proceeding by means of requests for admission and the use thereof shall otherwise be governed by C.R.C.P. 36.

(F) In determining good cause to modify the limitations of this subsection (b)(2), the court shall consider the following:

(i) Whether the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(ii) Whether the party seeking discovery has had ample opportunity by disclosure or discovery in the action to obtain the information sought;

(iii) Whether the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues in the litigation, and the importance of the proposed discovery in resolving the issues; and

(iv) Whether because of the number of parties and their alignment with respect to the underlying claims and defenses, the proposed discovery is reasonable.

[Subsections (E)(i)-(iv) are moved to new paragraph (F)]

(3)(A)-(B) [No Change]

(4)(A)-(C) [No Change]

(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information required to be disclosed or provided in discovery by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

[This subsection has been moved from section (a)(6) and amended.]

(c)(g) [No Change]

 

COMMITTEE COMMENT

SCOPE [No Change]

 

COLORADO DIFFERENCES

Revised C.R.C.P. 26 is patterned largely after Fed.R.Civ.P. 26 as amended in 1993 and uses substantially the same numbering. There are differences, however. The differences are to fit disclosure/discovery requirements with the new case/trial management system set forth in C.R.C.P. 16, which is very different from its Federal Rule counterpart. The interrelationship between C.R.C.P. 26 and C.R.C.P. 16 is described in the Committee Comment to C.R.C.P. 16.

The Colorado differences from the Fed.R.Civ.P. are: (1) timing of mandatory automatic disclosures is different (C.R.C.P. 16(b)); (2) the two types of experts in the Federal Rule are clarified by the State Rule (C.R.C.P. 26(a)(2)(B)), and disclosure of expert opinions is made at a more realistic time in the proceedings (C.R.C.P. 26(a)(2)(C)); (3) sequenced disclosure of expert opinions is prescribed in C.R.C.P. 26(a)(2)(C) to avoid proliferation of experts and related expenses; (4) the parties may use a summary of an expert’s testimony in lieu of a report prepared by the expert to reduce expenses (C.R.C.P. 26(a)(2)(B)); (5) claiming privilege/protection of work product (C.R.C.P. 26(b)(5)) and supplementation/correction provisions (C.R.C.P. 26(e)) are relocated in the State Rules to clarify that they apply to both disclosures and discovery; (6) a Motion for Protective Order stays a deposition under the State Rules (C.R.C.P. 121 § 1-12) but not the Federal Rule (Fed.R.Civ.P. 26(c)); (7) presumptive limitations on discovery as contemplated by C.R.C.P. 16(b)(1)(VI) are built into the rule (see C.R.C.P. 26(b)(2)); (8) counsel must certify that they have informed their clients of the expense of the discovery they schedule (C.R.C.P. 16(b)(1) (IV)); (9) the parties cannot stipulate out of the C.R.C.P. 26(b)(2) presumptive discovery limitations (C.R.C.P. 29); and (10) pretrial endorsements governed by Fed.R.Civ.P. 26(a)(3) are part of Colorado’s trial management system established by C.R.C.P. 16(c) and C.R.C.P. 16(d).

As with the Federal Rule, the extent of disclosure is dependent upon the specificity of disputed facts in the opposing party’s pleading (facilitated by the requirement in C.R.C.P. 16(b) that lead counsel confer about the nature and basis of the claims and defenses before making the required disclosures). If a party expects full disclosure, that party needs to set forth the nature of the claim or defense with reasonable specificity. Specificity is not inconsistent with the requirement in C.R.C.P. 8 for a "short, plain statement" of a party’s claims or defenses. Obviously, to the extent there is disclosure, discovery is unnecessary. Discovery is limited under this system.

FEDERAL COMMITTEE NOTES [No Change]

NOTES TO CHANGES ADOPTED 2001

Subsection (a)(2)(C)(II) is intended to prevent a plaintiff, who may have had a year or more to prepare his or her case, from filing an expert report early in the case in order to force a defendant to prepare a virtually immediate response. This section provides that the defendant’s expert report will not be due until 90 days prior to trial.

Subsection (b)(2)(A) has been changed to clarify that the deposition limitation does not apply to persons expected to give expert testimony disclosed pursuant to subsection 26(a)(2).

The special and limited form of request for admission in subsection (b)(2)(E) allows a party to seek admissions as to authenticity of documents to be offered at trial without having to wait until preparation of the Trial Management Order to discover whether the opponent challenges the foundation of certain documents. Thus, a party can be prepared to call witnesses to authenticate documents if the other party refuses to admit their authenticity.

 

Rule Change 2001(11):

Chapter 23.3. Rules Governing Contingent Fees

Rule 6. Sanction for Non-Compliance

No contingent fee agreement shall be enforceable by the involved attorney unless there has been substantial compliance with all of the provisions of this Chapter 23.3.

Rule 7. Forms

The following forms may be used and shall be sufficient. The authorization of these forms shall not prevent use of other forms consistent with this Chapter 23.3.

Form 1

Disclosure Statement

Type of Attorney Fee Agreements:

I have been informed and understand that there are several types of attorney fee arrangements: (1) time based, (2) fixed, (3) contingent, or (4) combinations of these types of fee arrangements. "Time based" means a fee that is determined by the amount of time involved such as so much per hour, day or week. "Fixed" means a fee that is based on an agreed amount regardless of the time or effort involved or the result obtained. "Contingent" means a certain agreed percentage or amount that is payable only upon attaining a recovery regardless of the time or effort involved. I understand that not all attorneys offer all of these different types of fee arrangements, and I acknowledge that I have the right to contact other attorneys to determine if they may provide such other fee arrangements for my case or matter. After such consideration or consultation, I have elected the fee arrangement set forth in the accompanying contingent fee agreement.

Specially Awarded Attorney Fees: [No Change]

Expenses: [No Change]

The Potential of Costs and Attorney’s Fees Being Awarded to the Opposing Party: [No Change]

Associated Counsel: [No Change]

Subrogation: [No Change]

Alternative Attorney Compensation:

I have been informed and understand that if, after entering into a fee agreement with my attorney, I terminate the employment of my attorney or my attorney justifiably withdraws, I may nevertheless be obligated to pay my attorney for the work done by my attorney on my behalf. The fee agreement should contain a provision stating how such alternative compensation, if any, will be handled.

I acknowledge that I received a complete copy of this Disclosure Statement and read it this ____ day of ______, 20___.

______________________________

(Signature)

 

 

Form 2
Contingent Fee Agreement
(To be Executed in Duplicate)

Dated ____________, 20__

[No Change]

(3) The client is not to be liable to pay compensation otherwise than from amounts collected for the client by the attorney, except as follows:

In the event the client terminates this contingent fee agreement without wrongful conduct by the attorney which would cause the attorney to forfeit any fee, or if the attorney justifiably withdraws from the representation of the client, the attorney may ask the court or other tribunal to order the client to pay the attorney a fee based upon the reasonable value of the services provided by the attorney. If the attorney and the client cannot agree how the attorney is to be compensated in this circumstance, the attorney will request the court or other tribunal to determine: (1) if the client has been unfairly or unjustly enriched if the client does not pay a fee to the attorney; and (2) the amount of the fee owed, taking into account the nature and complexity of the client’s case, the time and skill devoted to the client’s case by the attorney, and the benefit obtained by the client as a result of the attorney’s efforts. Any such fee shall be payable only out of the gross recovery obtained by or on behalf of the client and the amount of such fee shall not be greater than the fee that would have been earned by the attorney if the contingency described in this contingent fee agreement had occurred.

(4) [No Change]

(5) [No Change]

(6) [No Change]

(7) The client (authorizes) (does not authorize) [indicate which] the attorney to pay from the amount collected the following: (e.g., all physicians, hospitals, subrogation claims and liens, etc.). Where the applicable law specifically requires the attorney to pay the claims of third parties out of any amount collected for the client, the attorney shall have the authority to do so notwithstanding any lack of authorization by the client, but if the amount or validity of the third party claim is disputed by the client, the attorney shall deposit the funds into the registry of an appropriate court for determination. Any amounts paid to third parties (will) (will not) [indicate which] be subtracted from the amount collected before computing the amount of the contingent fee under this agreement.

[This section moved from below and amended]

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to Signatures:

_________________________

(Signature of Client)

_________________________ _________________________

Witness to Client’s Signature (Signature of Attorney)

_________________________

Witness to Attorney’s Signature

*[Here insert the percentages to be charged in the event of collection. These may be on a flat basis or on a descending scale in relation to amount collected.]

FINAL DISBURSEMENT STATEMENT

[No Change]

 

COMMITTEE COMMENT

The Rules contained in this Chapter 23.3 set forth the minimum requirements of all enforceable contingency fee agreements in Colorado. The Rules do not prohibit additional terms, provided that such terms are not inconsistent with these Rules or the Colorado Rules of Professional Conduct.

One type of provision that is sometimes included in contingent fee agreements is a "conversion clause." A conversion clause is a provision that converts the fee due from the contingent amount set forth in the contract to some other type of fee, often an hourly based fee, when the contract is terminated before the contingency occurs.

There are a number of factors that must be considered to determine the ethical propriety and legal enforceability of a conversion clause. These factors are set forth and analyzed in detail in Formal Opinion 100, issued by the Colorado Bar Association Ethics Committee. Opinions of the CBA Ethics Committee are available on the Internet at www.cobar.org. This Committee notes that any conversion clause that purports to remove the contingency by making the attorney’s fees payable without regard to the occurrence of the contingency, is presumptively invalid, unless the client is relatively sophisticated, has the demonstrated means to pay the attorney’s fee even before the occurrence of the contingency, and has specifically negotiated the conversion clause.

The Colorado Supreme Court has held that an attorney cannot recover a fee based upon quantum meruit or unjust enrichment, unless the contingent fee agreement provides notice to the client of the possibility of such a fee. Dudding v. Norton Frickey & Associates, 11 P.3d 441 (Colo. 2000). Section (3) of the form Contingent Fee Agreement, which is a part of Chapter 23.3, provides notice to the client of the possibility of a quantum meruit or unjust enrichment fee recovery.

 

Rule Change #2001(12)

Colorado Rules of Civil Procedure
Chapter 18. Rules Governing Admission to the Bar
Chapter 20. Colorado Rules of Procedure Regarding
Attorney Discipline and Disability Proceedings,
Colorado Attorneys’ Fund for Client Protection,
and Mandatory Continuing Legal Education and Judicial Education
Amended and Adopted

Rule 227. Registration Fee

A. Registration Fee of Attorneys and Attorney Judges (1) General Provisions

(a)-(b) Collection of Fee [No Change]

(c) Application of Fees. The fee shall be divided. Ten dollars shall be used to pay the costs of establishing and administering the mandatory continuing legal education requirement. A portion of the fee, to be determined and adjusted periodically by the Supreme Court, shall be used to support designated providers that have been selected by the Advisory Committee to provide assistance to attorneys needing help in dealing with physical, emotional, or psychological problems which may be detrimental to their ability to practice law. The remaining portion of the fee, and the entire fee of those on inactive status, shall be used only to establish and maintain an attorneys’ fund for client protection, and to defray the costs of disciplinary administration and enforcement, the costs incurred with respect to unauthorized practice matters, and the expenses incurred in the administration of this rule.

[No Change to Remainder of Rule 227]


 

Rule 251.34. Advisory Committee

 

(a) Advisory Committee. [No Change]

(b) Powers and Duties of the Advisory Committee. [No Change to (b)(1)-(7)]

(8) Repealed.

(9) Select one or more peer health assistance programs as designated providers.

To be eligible for designation by the Advisory Committee, an attorney’s peer health assistance program shall provide for the education of attorneys with respect to the recognition and prevention of physical, emotional, and psychological problems; offer assistance to an attorney in identifying physical, emotional, or psychological problems; refer the attorney for appropriate treatment; provide counseling and support for the attorney and for the family of any attorney referred for treatment; and agree to make their services available to all licensed Colorado attorneys.

Nothing in this rule shall be construed to create any liability on the Advisory Committee or the Supreme Court for the actions of the Advisory Committee in funding peer assistance programs, and no civil action may be brought or maintained against the committee or the Supreme Court for an injury alleged to have been the result of the activities of any committee-selected peer assistance program or the result of an act or omission of an attorney participating in or referred by a committee-selected peer assistance program.

(10) [No Change]

Amended and Adopted by the Court, En Banc, June 7, 2001, effective July 1, 2001.

By the Court:

Rebecca Love Kourlis

Justice, Colorado Supreme Court

 


Corrective Order #3 to Rule Change #2000(20)
Colorado Rules of Civil Procedure
Chapter 20. Colorado Rules of Procedure Regarding
Attorney Discipline and Disability Proceedings,
Colorado Attorneys’ Fund for Client Protection,
and Mandatory Continuing Legal Education and Judicial Education
Adopted

Rule 251.16. Presiding Disciplinary Judge

(a)–(c) [No Change]

(d) Abstention. The Presiding Disciplinary Judge shall refrain from taking part in any proceedings in which a judge, similarly situated, would be required to abstain. No partner or associate in the law firm of the Presiding Disciplinary Judge, or any attorney in any way affiliated with the Presiding Disciplinary Judge or the Judge’s law firm, may accept or continue in employment connected with any matter pending before the committee, the Judge, or a Hearing Board as long as the Judge is serving as the Presiding Disciplinary Judge.

(e) [No Change]

This Corrective Order is Adopted on June 11, 2001, nunc pro tunc, effective September 12, 2000.

By the Court:

Rebecca Love Kourlis

Justice, Colorado Supreme Court

© 2001 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2001.


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